McPherson v. State
| Decision Date | 31 August 1977 |
| Citation | 562 S.W.2d 210 |
| Parties | Lloyd James McPHERSON, Appellant, v. STATE of Tennessee, Appellee. |
| Court | Tennessee Court of Criminal Appeals |
Charles A. Leach, Malcolm L. McCune, Nashville, for appellant.
Brooks McLemore, Jr., Atty. Gen., William O. Kelly, Asst. Atty. Gen., Thomas H. Shriver, Dist. Atty. Gen., Michael D. Noel, Asst. Dist. Atty. Gen., Nashville, for appellee.
The defendant-appellant was convicted of rape and sentenced to serve ten years in the penitentiary. The same jury then considered evidence presented by the State concerning the defendant's prior convictions and returned a guilty verdict on the charge of habitual criminality, imposing the mandatory life sentence. On appeal the defendant challenges (1) the admissibility of an oral statement introduced against him at trial, and (2) the constitutionality of Tennessee's habitual criminal statute, T.C.A. § 40-2801. For the reasons set forth below, we affirm both convictions.
The only challenge presented by the defendant to the rape conviction concerns the admissibility of certain oral statements made by the defendant to police officers. After the defendant had been identified from a lineup by the rape victim, he was arrested and held in the county workhouse. While in jail, he was placed in solitary confinement, commonly called "the hole," after he assaulted a guard in an attempt to escape. The defendant spent eight days in the hole, during which time his only visitor was a clergyman, the Reverend James A. Weeks. The defendant told Weeks that he wished to speak to a particular police officer, but did not indicate the purpose for this request. Weeks was unable to locate the officer, who was on vacation at the time.
The next morning the police sent for the defendant, bringing him from the workhouse to police headquarters. The officers had information linking the defendant to another crime, a homicide, about which they wished to question him. After being informed of his Miranda rights, the defendant refused to sign a waiver form. Nevertheless, the police began their interrogation after the defendant indicated that he understood his rights and was willing to talk to them. A few minutes later the defendant asked to speak to Reverend Weeks. The police sent for the clergyman, interrupting the questioning until he arrived. After conferring with Weeks, the defendant made a complete confession to the homicide. He then signed the waiver form which was again proffered by the police. Following this, almost as an afterthought, the officers asked the defendant about his involvement in the rape. He made several inculpatory remarks, culminating in an admission of guilt. These statements were not recorded, either electronically or stenographically. At trial the officers present repeated the statements made by the defendant, as best they could remember.
The defendant challenged the admissibility of this confession. He alleged that at the time of the lineup which resulted in his arrest he was represented by the public defender, and that at that lineup the public defender told the police that the defendant would make no statement. The public defender, testifying at the hearing on the defendant's motion to suppress the confession evidence, indicated that he further admonished the police officers not to question the defendant. The content of this conversation however, was not communicated by the public defender to his client. Two of the interrogating officers testified that they had no knowledge of the conversation; another said he could not recall the specifics of his conversation with the public defender.
The defendant asserts that the trial court erred in permitting testimony concerning the confession because the police violated his Fifth Amendment privilege against self-incrimination and his Six Amendment right to counsel. After a careful review of the testimony, however, we conclude that neither of these contentions is supported by the proof.
With regard to the Fifth Amendment claim, the evidence shows conclusively that the defendant was advised of his constitutional rights to remain silent and to have an attorney present during questioning. Instead of insisting on the presence of his attorney, the defendant by his own admission asked only to be allowed to consult with his minister, Reverend Weeks. This request was immediately carried out by the police, who then allowed the defendant to meet privately with Weeks and to have Weeks present during interrogation. Weeks testified that the defendant told him privately he was going to confess because "it was the right thing to do," and that the defendant did not indicate that he wanted his attorney present at any time during the period of questioning. The defendant, testifying at the suppression hearing, said that he was aware at that time he had the right to have his attorney present, that he did not ask the police to call his attorney, and that he confessed to the murder but not to the rape. He said in this regard, He conceded that immediately following his murder confession, he signed a waiver form. He also said that once Weeks arrived, he felt that he would be successful in getting out of the hole.
Reverend Weeks was present throughout the interrogation concerning the murder charge, the rape charge, and two or three other charges which were pending against the defendant. He testified unequivocally to the non-coercive nature of the proceeding.
This proof amply supports the trial court's determination that the statements later admitted into evidence were given voluntarily by the defendant, following a waiver of his Miranda rights. The combined testimony of the officers involved, of the neutral eyewitness, and of the defendant himself establishes the existence of a knowing and intelligent waiver. The account given by the minister corroborates the testimony of the interrogating officers and tends to establish that the statement was voluntary, despite the defendant's self-serving testimony to the contrary. We find no Fifth Amendment violation on the record before us.
But the defendant further insists that the conduct of the police infringed upon his Sixth Amendment right to counsel, relying on the recent United States Supreme Court decision in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). In Brewer the accused had been arrested in Davenport, Iowa, for a homicide occurring in Des Moines. He was...
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